B-167028, JUN. 16, 1969

B-167028, JUN. 16, 1969

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF MAY 21, 1969, FROM THE ASSISTANT COMPTROLLER, FINANCIAL MANAGEMENT, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER COMMANDER EZRA F. FERRIS, USN, RETIRED, IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A HOME OF SELECTION IN THE CIRCUMSTANCES PRESENTED.

THE FILE SHOWS THAT COMMANDER FERRIS WAS RETIRED EFFECTIVE APRIL 1, 1968, AND ON THE SAME DAY HE WAS EMPLOYED BY THE ARA HOSPITAL FOOD MANAGEMENT CORPORATION IN THE CAPACITY OF RESIDENT DISTRICT MANAGER. HE DID NOT, HOWEVER, ENTER UPON EMPLOYMENT IN THAT POSITION BUT WAS TEMPORARILY ASSIGNED TO ANOTHER POSITION FOR A PERIOD OF APPROXIMATELY TWELVE MONTHS FOR TRAINING AND ORIENTATION TO THE POLICY, PROCEDURES AND METHODS OF OPERATION OF HIS EMPLOYER. ON NOVEMBER 1, 1968, WHILE STILL IN A TRAINING STATUS, THE OFFICER TERMINATED HIS EMPLOYMENT WITH ARA HOSPITAL FOOD MANAGEMENT CORPORATION AND ACCEPTED A POSITION WITH THE GREENVILLE HOSPITAL SYSTEM, GREENVILLE, SOUTH CAROLINA. THE OFFICER PLANS TO MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO GREENVILLE ON OR ABOUT JULY 1, 1969.

THE ASSISTANT COMPTROLLER ASKS WHETHER COMMANDER FERRIS' EMPLOYMENT, OR ON-THE-JOB TRAINING, WITH HOSPITAL FOOD MANAGEMENT IS ACCEPTABLE TRAINING SO THAT THE TIME LIMITATION ON THE MOVEMENT OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS EXTENDED TO OCTOBER 31, 1969, ONE YEAR AFTER THE TERMINATION OF HIS EMPLOYMENT WITH HOSPITAL FOOD MANAGEMENT, AND WHETHER THE FACT THAT HE MAY HAVE BEEN PAID DURING HIS EMPLOYMENT OR TRAINING WOULD AFFECT THE EXTENSION OF TIME.

SECTIONS 404 AND 406 OF TITLE 37, U.S.C. WERE AMENDED IN PERTINENT PART BY PUBLIC LAW 89-660, DATED OCTOBER 15, 1966, 80 STAT. 957, TO PROVIDE THAT THE PERIOD IN WHICH A MEMBER WHO IS OTHERWISE ELIGIBLE, MAY SELECT A HOME, TRAVEL THERETO, AND MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS ON THE BASIS OF HIS SELECTION, IS LIMITED TO ONE YEAR FROM TERMINATION OF ACTIVE RVICE,"EXCEPT AS PRESCRIBED IN REGULATIONS BY THE SECRETARIES CONCERNED.'

THE PERTINENT REGULATIONS ARE CONTAINED IN PARAGRAPHS M4158-2C, M7010-2B, AND M8259-5, JOINT TRAVEL REGULATIONS. THESE REGULATIONS PROVIDE THAT A MEMBER OTHERWISE ENTITLED, WHO ON THE DATE OF TERMINATION OF ACTIVE SERVICE, IS UNDERGOING EDUCATION OR TRAINING IN ORDER TO QUALIFY FOR ACCEPTABLE EMPLOYMENT, OR WHO COMMENCES SUCH EDUCATION OR TRAINING DURING THE ONE-YEAR PERIOD FOLLOWING THAT DATE, MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES FOR HIS TRAVEL AND TRANSPORTATION ALLOWANCES FOR DEPENDENTS AND HOUSEHOLD EFFECTS, PROVIDED (1) TRAVEL OF MEMBER, TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS ARE COMPLETED WITHIN ONE YEAR AFTER COMPLETION OF EDUCATION OR TRAINING OR TWO YEARS FROM THE DATE OF TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER, AND (2) TRAVEL, TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS ARE AUTHORIZED OR APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE. FURTHER EXTENSIONS OF THE TIME LIMIT MAY BE AUTHORIZED BY THE SECRETARY OR HIS DESIGNATED REPRESENTATIVE.

PUBLIC LAW 89-680, IN GIVING THE SECRETARIES BROAD AUTHORITY TO PRESCRIBE REGULATIONS PROVIDING EXCEPTIONS TO THE ONE-YEAR LIMITATION SET FORTH IN THE AMENDED SECTIONS OF TITLE 37, UNITED STATES CODE, DOES NOT DEFINE THE AREA IN WHICH THESE EXCEPTIONS MAY BE MADE, NOR DOES IT OTHERWISE LIMIT ITS IMPLEMENTATION. HOWEVER, HOUSE REPORT NO. 972, DATED SEPTEMBER 8, 1965, TO ACCOMPANY H.R. 266, WHICH BECAME PUBLIC LAW 89-680, SAYS THAT THE PURPOSE OF THE LAW IS TO AUTHORIZE THE SECRETARIES CONCERNED (IN SITUATIONS OTHER THAN THOSE PERTAINING TO MEMBERS CONFINED IN HOSPITALS, ETC.) TO MAKE REASONABLE EXTENSIONS OF THE ONE-YEAR LIMITATION FOR SELECTING A HOME UPON RETIREMENT, IN THE CASE OF THOSE PERSONS WHO DESIRE TO OR MUST SUPPLEMENT THEIR INCOME UPON RETIREMENT, BY UNDERGOING SCHOOLING OR TRAINING IN ORDER TO QUALIFY FOR ACCEPTABLE CIVILIAN EMPLOYMENT.

WE SEE NO REASON WHY ANY TRAINING WHICH A RETIRED OFFICER IS REQUIRED TO UNDERGO FOR THE PURPOSE OF QUALIFYING HIMSELF FOR ACCEPTABLE CIVILIAN EMPLOYMENT SHOULD NOT BE VIEWED AS TRAINING" FOR THE PURPOSES OF THE LAW AND REGULATIONS, EVEN THOUGH THE TRAINING IS DISCONTINUED BY THE OFFICER PRIOR TO ITS COMPLETION. AND, WE FIND NOTHING IN THE LAW, OR ITS LEGISLATIVE HISTORY, WHICH REQUIRES A CONCLUSION THAT SUCH TRAINING AS IS REQUIRED OF THE OFFICER MAY NOT BE UNDERGONE IN A SALARY STATUS AS A PART OF HIS CONTRACT OF EMPLOYMENT.

ACCORDINGLY, IT IS OUR VIEW THAT IN THE CIRCUMSTANCES OF HIS CASE, COMMANDER FERRIS IS QUALIFIED UNDER THE LAW AND REGULATIONS FOR AN EXTENSION OF THE TIME LIMITATION ON THE MOVEMENT OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO OCTOBER 31, 1969, PROVIDED THE EXTENSION OF TIME IS APPROVED BY YOU OR YOUR DESIGNATED REPRESENTATIVE.

A COPY OF THIS DECISION IS BEING SENT TO THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.